Law Report:

COURT – Competence of court to adjudicate over a suit -Presence of proper parties as determinant of PARTIES – Competence of court to adjudicate over a suit – Presence of proper parties as determinant of Issue:

Whether the Federal High Court, Abuja was right to have made orders which placed the 1 st respondent in the office being occupied by the appellant without hearing him on the issue.

Facts:

The 1 st respondent was the plaintiffbefore the Federal High Court, Abuja. He instituted the action by way of originating summons. In the action, he claimed that he was the nominated candidate of the Peoples’ Democratic Party (PDP) to contest as the representative for Ika South Constituency into the Delta State House of Assembly.

The seat was however won by the appellant herein, who was already sworn in as member representing Ika South Constituency in the State House of Assembly.

Without joining the appellant in the suit, the Federal High COUlt granted the declaratory reliefs sought by the 1st respondent. These reliefs which adversely affected the appellant caused the appellant to apply to be joined as an interested patty in the suit.

The application was initially granted, but following a cross-appeal by the 1st respondent (which cross-appeal was allowed), the 1 st respondent/cross-appellant was restored as the legitimate candidate for the election, and placed in the office being occupied by the appellant without hearing the appellant on the issue.

The Federal High Court also stated that the appellant was not a necessary party to the proceedings at the Federal High Court.

Dissatisfied with the ruling of the Federal High Court, the appellant appealed to the Court of Appeal, which fmding was also unfavourable to him. Dissatisfied still, the appellant appealed to the Supreme Court.

Held: (Allowing the appeal and setting aside the decision of the trial court and Court of Appeal) 1. Presence of proper parties as determinant of court’s competence to adjudicate over a suit – It is only when proper parties are before the court that makes a court competent to adjudicate on a suit. A court has no jurisdiction to make an order which affects the interest of a person who has not been joined as party.

[Pp. 980 – 981, Pwas. G – A] 2.Who is a necessary party to a suit- The fundamental reason which makes it necessary to make a person a party to an action is to make him bound by the result of the action.

Therefore, in determining who is a necessary party, what to consider is, whether the question in the action cannot be effectually and completely settled unless the person is made a party.

In the instant case, there are overwhelming facts before the court to indicate that the issue of substitution between the appellant and the 1st respondent could not have been effectuall}’ and completely settled without joining the appellant.

It clearly amounts to a breach of his fundamental rights to fair hearing by virtue of section 36(1) of the 1999 Constitution, not to have been joined him at every stage ofthe proceedings at the Federal High Court.

The action at the Federal High Court was incompetent, and the decision of the court in holding that he was not a necessary party was glaringly wrong, and consequently incompetent. [Awoniyi v. Regd. Trustees, AMORC (2000) FWLR (Pt.25) 1592, (2000) 10 NWLR (pt. 676) 522; Green v. Green (1987) 3 NWLR (pt. 61) 480, (2001) FWLR (Pt. 76) 795 referred to] [P. 981, Paras. A – D]

ADEKEYE JSC (Delivering the Lead Judgment): This is an appeal against the judgment ofthe Court of Appeal, Abuja, delivered on 12 May 2010. By way of brief background of the facts – the matter was commenced at the Federal High Court, Abuj a, by originating summons. The plaintiff –

G before the Federal High Court – now the 1st respondent in this appealKingsley N onye Philips, claimed that he was the nominated candidate of Peoples’ Democratic Party to contest as a representative for Ika South Constituency into the Delta State House of Assembly.

The seat being contested by the 1 st respondent in court was won by the appellant, Hon.H Martin Okonta, who was already sworn in as a member representing Ika South Constituency in the Delta State House of Assembly.

The Federal High Court did not deem it fit to join the appellant in this case to that action, regardless of the ilct that there were relevant portions of the originating summons which made particular reference to the appellant as follows: A Paragraph 4(1)

“That the plaintiff in the above mentioned struck out action contested the primary election with the plaintiff and in the application lost to the plaintiff. His name is Martin Okonta.” Paragraph4CK) B

“That the plaintiff was surprised to hear from the Asaba office of the lnd defendant about a letter of substitution written by the 1 st defendant to the 2nd defendant substituting his name for the said Martin Okonta on 5 February 2007.

The plaintiff were only allowed to read the letter but refused a copy of same as the office had only a few fax copy which could be C read with some difficulty.”